Boca Raton, Fla. (Feb. 8, 2017, updated Feb. 10).– These are fascinating times for appellate lawyers such as the state and federal appeals attorneys at The Law Offices of Robin Bresky. Their experience in litigation support and appellate practice affords them a unique perspective on the unfolding drama of the legal challenge to President Trump’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (commonly dubbed the “travel ban”) issued on January 27, 2017. This case illustrates several principles of civil and appellate procedure. Here is a video overview, followed by our written summary with links to the court filings:

Among other things, the President’s order suspended entry into the United States for 90 days from the countries listed by Congress in section 217(a)(12) of the Immigration and Nationality Act, 8 U.S.C. § 1187(a)(12), which mentions Iraq, Syria, and several other “countries or areas of concern” and applies to Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Executive Order § 3(c). The order also allowed for case-by-case exceptions to that suspension of entries. Executive Order § 3(g).

The order suspended the U.S. Refugee Admissions Program for 120 days. Executive Order § 5(a). In spite of that suspension, the order also allowed for admission of refugees on a case-by-case basis. Executive Order § 5(e). It also suspended any entry of Syrian refugees “until such time as [the President has] determined that sufficient changes have been made … to ensure that admission of Syrian refugees is consistent with the national interest.” Executive Order § 5(c). The President’s order included several other provisions, such as strengthening the vetting procedures for refugees (sometimes referred to as “extreme vetting”). It also stated: “This order shall be implemented consistent with applicable law and subject to the availability of appropriations.” Executive Order § 10(b).

Several individuals and organizations quickly filed suit seeking to block the order. For example, on January 30 and February 1, 2017, the states of Washington and Minnesota filed a complaint in the U.S. District Court for the Western District of Washington, in Seattle, seeking declaratory relief (to declare portions of the order invalid) and injunctive relief (to block enforcement of those portions of the order). The states noted the effect on persons such as visa holders who have previously come to the United States and seek to return to the U.S. from the specified nations. The states argued that the order unconstitutionally discriminates on the basis of religion and nationality and harms the economy.

On January 30 the states also filed an emergency motion for a temporary restraining order (“TRO”) to maintain the status quo by halting enforcement of the President’s order during the period before the court would have an opportunity to hear a motion for a preliminary injunction (which, in turn, could block enforcement of the Executive Order for months pending full resolution of the states’ complaint on the merits).

On February 1, the Counsel to the President issued an official memorandum clarifying that the suspension on entry of foreign persons in sections 3(c) and 3(e) of the Executive Order does not apply to lawful permanent residents of the United States (green card holders).

On February 2, the Department of Justice filed a response to the states’ motion for a TRO, emphasizing the President’s authority over foreign affairs and national security and arguing that the states lack standing to invoke the court’s jurisdiction to challenge the President’s order. The DOJ further argued that the states could not make the legal and factual showings necessary to obtain a TRO.

The Government asserted that the Executive Order is the kind of proclamation envisioned by Congress in the Immigration and Nationality Act, which provides: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f). The plaintiffs argued, however, that this particular Executive Order was unfounded and was issued with discriminatory intent.

The District Court held a hearing on February 3, 2017, where the states argued that certain sections of the Executive Order are contrary to the Constitution and laws of the United States. However, the Government argued that Congress has given the President the exclusive prerogative to assess the risk of immigration from certain countries that had been identified by Congress and the previous administration as nations of concern, and to suspend entry from those countries. Because that court is in one of the three federal districts allowing cameras, the hearing was recorded on video:

Later that day on February 3, the District Court issued a temporary restraining order (“TRO”) finding that the states fulfilled the requirements for obtaining a TRO, including showing a likelihood of success on the merits and facing immediate and irreparable injury if the President’s order is implemented. The court granted the TRO on a nationwide basis, prohibiting enforcement of sections 3(c), 5(a), 5(b), and 5(c) (and part of 5(e)) of the Executive Order, which were summarized above.

On Saturday February 4, the Department of Justice filed a notice of appeal in the District Court, appealing the TRO to the U.S. Court of Appeals for the Ninth Circuit, based in California and having appellate jurisdiction over the federal district courts in nine western states and the island of Guam and the Northern Marianna Islands.

Also on February 4, the Department of Justice filed an emergency motion in the Ninth Circuit asking the appellate court to stay the District Court’s TRO, and seeking an immediate administrative stay pending full consideration of the emergency motion for a stay. The Government’s goal was to stay the TRO immediately and keep it stayed throughout the appeal so as to let the Executive Order be implemented while the appeal of the TRO proceeds on the merits.

That same day, the court issued an order denying the Government’s request for an immediate administrative stay based only on a motion. The court indicated that it wanted to have some briefing before making a decision. It ordered the states of Washington and Minnesota to file a response to the emergency motion by 11:59 p.m. on Sunday, February 5 (later revised to 1:00 a.m. on Monday February 6), and asked the Government to file a reply in support of the emergency motion by 3:00 pm on Monday, February 6.

On February 6, the states filed a response to the Government’s emergency motion for a stay of the TRO. The states argued that the “travel ban” had created chaos and harmed the states and their residents, including the state university system, and that the President’s order is unfounded and unconstitutional.

Later that day, the Trump Administration filed a reply to the states’ response. The reply argued that the states lack standing and are unlikely to succeed on the merits.

Numerous groups and individuals filed “friend of the court” briefs in support of one side or the other. For just a few examples, 97 corporations filed an amicus brief supporting the states, and numerous other companies later joined in that brief. A conservative think tank, the American Center for Law and Justice, filed an amicus brief supporting the Governement’s position. The attorneys general of 15 states and the District of Columbia filed an amicus memorandum of law in support of the states. The State of Hawaii moved to formally intervene in the appeal but was only allowed to file an amicus brief.

On February 6, the court ordered the parties to appear telephonically for an oral argument the next day. Thus, on February 7, a three-judge motions panel of the Ninth Circuit Court of Appeals held an oral argument, in which the court grilled both sides with tough questions:

On February 9, the motions panel issued a 29-page per curiam order denying the emergency motion for a stay pending appeal. The order noted that a TRO is not ordinarily appealable, but “in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction.”

In part, the order stated: “The Government … moves for an emergency stay of the district court’s temporary restraining order while its appeal of that [TRO] proceeds…. We assess [the] factors in light of the limited evidence put forward by both parties at this very preliminary stage…. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”

That order allowed the TRO to remain in effect while the appeal on the merits of the TRO proceeds in the normal manner. The court ordered a briefing schedule where all the briefing on the merits must be completed by March 29. Then there would be an oral argument before the merits panel.

However, the court also recognized that the Government may want to file a motion for reconsideration of the February 9 order, or even a motion for reconsideration en banc where 11 of the 25 active judges of the Ninth Circuit would review the emergency motion for a stay of the TRO pending the appeal on the merits of the TRO. The court ordered that any such motion for reconsideration will be due within 14 days, by February 23, 2017. Additionally, on February 10, one of the 25 judges made a sua sponte request for the judges to vote on whether the order issued by the three-judge motions panel on February 9 should be reconsidered en banc. The parties have been ordered to submit briefs by February 16 on the question of whether the February 9 order should be reconsidered en banc.

The fact that the appeal will be moving forward on the merits of the TRO, will not prevent the District Court from granting a full-fledged preliminary injunction that would prevent implementation of the Executive Order until the end of the states’ litigation in the District Court and any appeals. The lower court has already scheduled briefing on the states’ motion for a preliminary injunction. There could also be an appeal from such preliminary injunction and/or from the final order on the merits of the states’ complaint.

Alternatively, the Government could appeal directly to the Supreme Court from the Ninth Circuit’s February 9 order. One way or the other, it seems likely that the Supreme Court will be asked to resolve this matter in the near future. However, considering the current vacancy on the Supreme Court, there could be a 4-to-4 split among the justices, which would result in the Ninth Circuit’s decision being allowed to stand.

The briefs and oral arguments in this case illustrate the kind of legal and procedural issues that appellate attorneys are adept at handling. The appellate and litigation-support lawyers at The Law Offices of Robin Bresky are well-versed in the complexities of appellate procedure. They excel at researching the law to find the most applicable cases, statutes, and other legal authorities; and they enjoy writing a cogent analysis to apply the law to the facts. They are available to handle state and federal appeals and litigation support in South Florida, all of Florida, and beyond.

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